Litigation in Ancient Athens

• Review
• People involved in an Athenian Trial
• What Happened at Trial
• The Ekklesia of the People
• How to pass an Athenian law

1. Boule - Council
2. Archons - Magistrates (execute policies of bodies that set policy)
3. Ekklesia - Assembly
4. Dikasteria - Courts - (individual courts had different Greek names (e.g., Areopagus, Palladion)).
   
   

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People involved in an Athenian Trial

• Background:
  • amateur system -> cheap and quick e.g. all trials completed w/in one day (private suits even faster)
  • no professional speakers logographoi ok, but speaker would never admit his speach was ghosted
  • administration by magistrates chosen by lot w/ limited jurisdiction
  • only parties who were reguarly paid were jurors
  • no police force [at least one with authority to initiate investigation and prosecution of wrongdoing]
• arkhai [magistrates/archons] public official among whose chief duties was the administration of a court
  • Some had "summary jurisdiction" [authority to make decisions w/o trials]
  • The Eleven - in charge of prison(s) and executions power of arrest of offenders who had been denounced to them execution w/o trial of criminals caught in the act who admitted their guilt cf. right of citizens to kill those who broke into their homes at night
  • The Forty - circuit judges who could settle private cases /wo trial if dispute was < 10 drachmai
  • Archons' right to impose epibolai (summary fines) worth less than 500 drachmai
    • higher fines required courts to ratify or decide
  • non-dikastic courts [decisions made by those other than jurors selected by lot who had taken oath]
    • e.g. Areopagus (ex-archons) some religious cases deliberate homicide cases
      • increasing jurisdiction of political cases in 4th century bce
      • apophasis (introduced in 350) gave Assembly right to ask Areopagus to investigate a political scandal and report to it [cf special prosecutor]
      • Areopagus cd also investigate on its own motion
  • e.g. courts for unintentional homicide (51 ephetai, probably members of Areopagus) e.g. Palladion, Delphinion, in Phreatto
    
    
• dikastai (jurors/judges)
  • had the right to decide law, facts and sentence (areas normally split in modern courts)
  • elibibility
    • citizen in full possession of rights (i.e., no atimia)
    • 30 yrs old
    • one of the 6,000 citizens who had swarn dikastic oath at begining of year
  • service
    • you were not required to serve every day the Courts were in session
    • rather, archons divided the jurors who elected to serve on a given day between the courts that were hearing cases that day (typically 500/501 jurors to a court)
    • At the beginning of the year, jurors giving a pinakion with his name, his father's name, his deme and a letter from alpha to kappa, thus dividing the jury pool into 10 sections. [picture of a pinakion]
    • During the fourth century (the Athenians were constantly tinkering with the system in order to make it more random, and less susceptible to corruption) each morning that the courts sat, the archons would determine how many jurors they would need in total that day (and therefore, how many sections of the jury pool they would need)
    • Each court had 10 entrances, one for each tribe. The jury went to the tribal entrance appropriate for himself and presented his pinakion, which was placed in the kleroterion (allotment machine -think of the machine the picks lottery numbers). [ruins of a kleroterion; reconstruction of one]. The kleroterion picked which potential jurors would actually serve that day (by randomly rejecting the number of pinakia not needed].
    • After the day's total panel was selected, the jurors whose pinakia were not rejected were then divided (again by a randomizing system) among the actual courts that would sit that day. Before entering the court, the jurors, were handed a symbolon, which they handed in at the end of the day to claim their jury pay and to get their pinakion back. Finally, the magistrates were assigned by lot to the courts which they would administer that day.
    • Courts sat approximately 200 days of the year.
      • more info at INFO TECH OF ANCIENT DEMOCRACY
      • Hansen, 197-199
  • social composition of jury pool
    • Todd 87-89, says that system probably encouraged farmers (who didn't work steadily, but rather in periods of intense activity followed by periods of relative inactivity) rather than artisans and shopkeepers (who would prefer to be open for business as much as possible).
    • Hansen 183 - 185, says that all the sources -> poor citizens served as jurors (Todd says this is elitist rhetoric).
    • Pay (3 obols) too small to feed a family, but just enough for the elderly, invalid and unemployed (-> older, poorer jurors).
  • jury verdicts
    • final - i.e., no appeal [the courts sat as Athens, no higher authority to appeal to]
    • tended to be less an acceptance of one sides factual assertions as it was an acceptance/approval of one politician over an other
    • some cases required jurors to vote on punishment as well as conviction
    • jurors never had discretion to vote for anything other than one party over an other; the punishment proposed by one party or the other [no compromise, no lesser included offense]
    • reached without deliberation
      • Jury had received with his symbulon, two voting disks that looked identical but one of which was hollow [picture of voting disk - scroll down and be patient]. The hollow disk was a vote for the plaintiff, the heavy disk, a vote for the defendant. At the end of the trial jurors filed past two urns, one bronze and one wood. The juror cast the vote he intended to count in the bronze urn.
      • tie votes went to defendant
        
        
• litigants
  • amateur prosecutors in both public and private cases
    • public synegoroi acted on behalf of city against public officials who failed an accounting (euthynai). Sometimes in very unusual, high profile cases, a synegeros would be appointed prosector (e.g., the trial of Demosthenes). But basically, nothing like modern system of US attorneys or district attorneys.
    • nb, family and friends who helped out litigatnts in court were also called "synegoroi" [which means "helpers"]. Athenians had no problems keeping the two distinct.
      • the private synegoros had to ask the permission of the jurors before he could speak
      • to be successful, he usually had to explain why the litigant needed his help (e.g., too young, inexperienced, couldn't speak Greek) and what the relationship between synegeros and litigant was [long standing friends, or family was best]
      • disasterous if jury thought synegeros acted for money (doing it for reasons of political affiliation, however, were ok)
        
        
• sykophants ("fig denouncers" - go figure)
  • rhetoric against -> professional man of the courts who would sue rich, "quiet" Athenians not to help the demos but rather to get the payoff the Athenian would pay rather than go through the hassle of fighting off a baseless charge in court [cf. modern "nuisance suits"].
  • rhetoric for -> citizen who devoted his life to the demos by prosecuting those rich scoundrels who would defraud her.
  • no fixed definition for the term: definitely used as a disparaging term by defendants of prosecutors; could meaning anything from suing because you have a financial incentive, to suing because your a vextious litigant [i.e., a pain in the patoot who gets off on suing people - what auto companies think of Ralph Nader].
    
    
• logographoi ("speech writers")
  • virtually no mention of logographoi in speeches
    • i.e., not a good thing to admit someone else wrote your speech
  • interesting to note that all of our speeches are those written by logographoi
  • Dover (Lysias and the Corpus Lysicorum) -> process was collaborative; litigant didn't just memorize what logographoi wrote.
  • Athenians may have thought of logographoi as advisers on technical requirements of law [e.g. Isaeus was a noted expert on inheritance law].
    
    
• martyres ("witnesses")
  • we think of witnesses as people who possess evidence (i.e., accounts of what transpired). The Athenians also thought of them this way, but more importantly, witnesses were
  • allies - citizens who were willing to be seen in public as taking your side, and risk being harrassed in court by your enemies at a future date. Juries could determine how seriously to take a litigant and his claims, by assessing the status of the witnesses who supported the litigant at trial (Sally Humphries, "Social Relations on Stage").
  • witness could not, practically speaking, be compelled to testify
  • Witnesses were also important because writing was still, relatively speaking a new technology. While we distrust witnesses (they can be mistaken or bribed) and trust writing, Athenians trusted witnesses (because they put their own social standing at risk) and distrusted writings (because they could easily be forged).
  • Slaves could only be witnesses if they had given testimony under torture
  • Women could not testify at trial. If a woman had evidence, she gave an affidavit (a written statement of what her testimony would be, which she swore by oath was true).

   

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What happened at trial

pretrial

• public cases [graphai]
  • prosklesis - summons
    • plaintiff/accusor accompanied by witnesses (kleteres) delivered formal document requiring defendant to appear before magistrate/archon. Form and details had to be right or defendant could ignore or get magistrate to quash.
    • on day of hearing before magistrate/archon, the plaintiff/accusor presented his indictment.
      • if the defendant had been properly summoned and failed to appear, the magistrate could theoretically give a verdict to the plaintiff/accusor [but it never happened as far as we know]
      • magistrate/archon could compel plaintiff/accusors to amend improperly drafted indictments; if sufficiently defective, they could refuse to accept
      • magistrate would then collect fees (if any were required) and set a date for the anakrisis (preliminary hearing).
  • anakrisis - ("examination") preliminary hearing
    • our evidence makes very few references to anakrises
    • we think that magistrate/archons had authority to ask questions of litigants to define scope and extent of issues to be decided at trial (which would help them apportion time in private cases)
    • Isai. 10.2 suggests that the magistrate/archon could pressure plaintiff/accusors to amend claims and prevent plaintiff/accusors from bringing legally insufficient claims
    • it should be noted that parties would in different types of cases have different incentives on how much of their plans to reveal at a preliminary hearing
    • litigants swore antomosi - an oath that their written pleas (indictments and replies) were true.
  • public arbitration
    • arbitrators (diatetes) were publicly appointed
    • arbitrators were men (may just hoplites) in last year of military service (i.e., about 60)
    • arbitrator's verdict was not binding
    • arbitrator could be sued for producing a corrupt verdict and suffer atimia if convicted.
  • sealing of evidence
    • if parties didn't accept arbitrator's verdict, all documents presented by either side were gathered and sealed in a pot called an ekhinos.
    • neither side could introduce evidence at trial that wasn't in the ekhinos.
    • "rationality" arguments
      • gave incentive to parties to put everything on table before arbitrator
      • gave arbitrator protection from suit against his verdict (he could point to what the evidence was that he had relied upon)
      • defined scope of each side's case nb: when the ekhinos was sealed is the subject of no small scholarly debate (some say it was anakrisis - which would affect "rationality" arguments")
• private cases [dikai]
  • prosklesis - summons
  • anakrisis - preliminary hearing
  • cases < 10 drachma then resolved at a hearing before the Forty
  • cases > 10 drachma sent to public arbitration
  • sealing of evidence
    • The Ath.Pol. only describes the sealing of evidence for public cases. This does not mean it didn't happen in private cases, only that we have no evidence for it.
  • resolution of procedural/technical challenges to indictment
    • only used in private cases
    • these tended to be vehicles by which defendants sought to turn tables on the plaintiff/prosecutor; put him on the defensive by requiring him to defend his case
    • diamarturia
      • very old procedure
      • a form of assertion of fact by means of a witness(es) who testify at a hearing before the magistrate/archon under oath about something that will have a dispositive impact on the trial
      • used a lot in inheritance case
    • paragraphe
      • developed after 403 to deal with prosecutions brought in contravention of the Amnesty
      • counter-charge that plaintiff/accusor is bringing an illegal prosecution
      • never used in inheritance cases, but seems to have become the diamarturiafor all non-inheritance cases
      • if you lost the paragraphe, in theory, you would go on to trial of the original indictment. But most litigants would have taken this as a sign that they had a lousy defense and it was time to settle the dispute outside court
      • a trial before jury automatically follows, but now the original defendant is the accusor and the original plaintiff/accusor is the defendant (on a charge of bringing an illegal prosecution)
• private arbitration
  • neither party wanted to go to court
  • agreed to be bound by decision of a private arbitrator: diaitetes parties
  • had to agree to identity of arbitrator, terms of his appointment, scope of his discretion
  • probably worked best in small scale disputes and between people who didn't want their dispute politicized
  • parties were not required to accept verdict of arbitrator

at trial

• reading of written charge and defendant's reply
• oath of litigants to only speak on relevant matters
• speeches
  • public cases
    • each party had one speech speech
    • could last 3 hours
    • plaintiff/accusor went first
  • private cases
    • archons/magistrates decided before trial how long the speeches could
    • longest was usually 40 minutes
    • parties also had brief closing speeches
  • in both kinds of cases
    • parties could ask each other questions and had to answer
    • evidence was read out by clerk [didn't count against time for speech]
    • time measured by water clock (klepsydra)
      • water clock is a jug with a stoppered hole
      • unit of measurement was a khous (3.2 litres)
      • two khous took six minutes to drain
      • nb: these are figures based on the only klepsydra ever found, which was meant for use in tribal assemblies, not city trials
• vote of jury on conviction
  • ties went for defendant
  • if plaintiff/prosecutor did not obtain twenty percent of the vote he was fined 1,000 drachmai and some form of atimia
• vote of jury on penalty
  • sometimes specified by law [agones atimetoi]
  • agones timetoi - trials of assessment
    • plaintiff/accusor proposed a penalty [timema]
    • defendant proposed a penalty [antitimema] jury had to choose between two
• execution of jury's judgment
  • cases involving financial timesis
    • confiscation
    • fine
  • cases involving physical timesis life/death
    • we actually have a lot of reference to the death penalty. It's hard to tell if this is a bias of our sources (they tend to focus on "high crimes")
    • for defendants who skedaddled rather than stand trial, nobody tried to hunt them down or extradict them (instead they were considered to be in exile and to have lost all civic rights, which made it impossible for them to return home)
    • in homicide cases, the defendant had the right after the opening speeches, to go into voluntary exile
      • for Athens the issue was religious (cleansing city of blood-guilt) not penal
    • types of execution
      • barathron - ancient method (throw people into a pit)
      • apotumpanismos - somewhat like crucifixion [being tied to a chair/stock; beaten up; left to die of exposure - exact details of what happened are sketchy]
      • hemlock
  • cases involving loss of freedom
    • used with certain classes of public debtors
    • pre-trial detention for prisoners awaiting trial by apagoge [a type of criminal charge] \
  • atimia - removal of honor"
    • imposed only on male citizens imposed only for offenses committed by a citizen in his capacity as citizen
    • it was not the denial of citizenship [i.e., you could still live in Athens], but the denial of the right to do things citizens could do [go to court, temples, Assembly, etc.].
    • It may be that if the atimia was bad enough, Athenians went into exile voluntarily.
    • could be whole or partial
    • typically life long
    • not hereditary
    • atimia for debts
      • automatic for unpaid debts to state
      • automatically lifted when debt paid
      • hereditary
  • ??exile??
    • not clear if it was an actual punishment of the jury, or defacto what happened when a defendant voluntarily went into exile to avoid trial or conviction in homicide trials.

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a. types of meetings:

• i. ekklesia kyria:
  • 1 per prytanny [month]
    • regularly scheduled
    • always had specified types of business: e.g. eisangelia; pleas concerning heiresses and inheritances
• ii. ordinary ekklesia: up to 3 meetings
  • 2 re petitions
  • meetings 3 & 4 re religious affairs, foreign affairs, profane affairs
• iii. ekklesia synkletos "summoned ekklesia"
  • Assembly meetings convened at short notice, above and beyond kyrios and ordinary top of page

b. nature of meetings

• i. business had to be concluded w/in one day
• ii. couldnÕt be held on festival or "taboo" days
• iii. nothing could be discussed without a probouleuma "preliminary decree" [unless it was an obligatory item - e.g., certain items always discussed at ekklesia kyria] - probouleuma were:
  • 1) concrete
    • a) Counsel gave specific, detailed recommendation
    • b) Assembly either accepted (with at most minor modifications) or rejected; or
  • 2) Open
    • Counsel gave no recommendation
• iv. Agenda always posted four days before a meeting
• v. No one who participated in a meeting had to take an oath. Important because jurors did, which meant that their decisions were believed to deserve greater credence.
• vi. Sources suggest relatively small number of political leaders in Athens. People who spoke in assembly were called rhetores.
  • 1) speakers
  • 2) proposers of decrees
    • a) nb probouleuma came through council [=> proposer was counsillor]
    • b) often political leaders had "men of straw" [sykophants] propose decrees [e.g. Demosthenes accuses Timarchus of being AndrotionÕs sykophant] ? why?
• vii. voting on decrees was by
  • 1) show of hands
    • proedroi called for ayes and nays. People raised their hands in their seats. It appears the proedroi made a rough estimate and would take a second vote on their own initiative or on the request of an Assembly member; 04
  • 2) casting of votes
• viii. The proposer of a decree, the proedroi, and the chairman of the prytanny were subject to litigation on decrees
• ix. A copy of a decree was kept in the Metrošn and if the decree provided inscribed on stone (job of secretary of Council)
• x. After all votes for items on agenda taken, proedroi declared meeting over. Citizens left Pynx and received their pay. top of page

c. organization of meetings

• i. Each of the 10 tribes sent 50 members to the Council/Boule (called prytaneis)
• ii. Each month 1 tribe served as prytaneis ("administrators") of the Council/Boule iii. Each day nine proedroi were chosen by lot from the 450 members of the Boule who were not serving as prytaneis iv. The proedroi selected their chairman, epistateston proedron by lot. The proedroi administered Council/Boule and Assembly/Ekklesia meetings

Method 1:

• new legislation must be posted before 1st meeting of assembly [on boards by the statues of the Eponymous Heros]
• first month of year Assembly votes on laws (nomoi); if they reject any existing laws
• last meeting of month reserved for discussion on legislation directing nomothetae on when and how to review laws; defenders of existing law chosen
• Nomothetai chosen by lot - sometimes as many 1000 hearing
• held and proposal of nomothetai published
• Assembly then voted on nomothetai's proposal

Method 2:

• Thesmothetae reviewed laws and requested the Assembly to appoint nomothetae if they felt a change was need

Method 3:

• an individual citizen posts a draft of a new law
• which proposed a repeal of an old law and the creation of a new law to take its place
• and requested a probouleuma from the Council [to put consideration of the new law on the Assembly's agenda]
• proposeed law at meeting of Assembly, waited for second meeting to pass, asked for vote on third meeting.

More Info At: Stoa | Legislation